International Copyright Law and Access to Education in Developing Countries

Exploring Multilateral Legal and Quasi-Legal Solutions


In International Copyright Law and Access to Education in Developing Countries: Exploring Multilateral Legal and Quasi-Legal Solutions, Susan Isiko Štrba offers an understanding of the legal relationship between copyright regulation and access to education in developing countries, and explores both institutional and normative ways to facilitate access to printed educational and research materials.
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Table of contents

CONTENTS Acknowledgments Preface Abbreviations used GENERAL INTRODUCTION Definition of the problem and objectives Structure of the research CHAPTER 1: A SHORT PRIMER ON COPYRIGHT 1.1. Introduction 1.2. What are Intellectual Property Rights? 1.3. Intellectual property and development in general 1.4. Historical Development of copyright protection: a brief survey 1.5. Development of multilateral protection of copyright: copyright law becomes a means to protect one country’s works in another country 1.6. Purpose of international copyright protection 1.7. Rights Conferred by a Copyright 1.7.1. Reproduction right 1.7.2. Translation right 1.7.3. Distribution right 1.8. Conclusions CHAPTER 2: SPECIAL ACCESS NEEDS OF DEVELOPING COUNTRIES AND THE IMPACT OF COPYRIGHT ON ACCESS TO EDUCATION 2.1. Introduction 2.2. Understanding the pertinent elements of education 2.2.1. Aims and objectives of education 2.2.2. Essential features of education 2.3. The role of copyright as an access barrier to education in developing countries 2.4. Understanding the special access needs of developing countries 2.5. Why Developing countries need bulk access to printed copyrighted material 2.6 Conclusion CHAPTER 3: THE EFFECT OF LIMITATIONS ON AND SPECIFIC EXCEPTIONS TO COPYRIGHT ON ACCESS TO EDUCATION IN DEVELOPING COUNTRIES 3.1. Introduction 3.2. Limitations on copyright protection do not promote access to educational materials in developing countries 3.2.1. Creativity or originality requirement 3.2.2. Fixation requirement 3.2.3. Usefulness of limitations on copyright protection for access to education in developing countries 3.3. Limitations on Rights conferred by a copyright: General 3.4. Specific exceptions to the rights of reproduction and translation relating to education 3.4.1. Quotations Lawfully made available to the public Compatible with fair practice Must not exceed that justified by the purpose 3.4.2. Utilization of a work by way of illustration in teaching The meaning of “illustration in teaching” Use must not exceed the extent justified by the purpose Compatible with fair practice 3.4.3. Conclusions on effect of specific exceptions and limitations on access to education in developing countries CHAPTER 4: IMPACT OF THE THREE-STEP TEST UNDER THE BERNE CONVENTION AND THE TRIPS AGREEMENT ON ACCESS TO EDUCATION IN DEVELOPING COUNTRIES 4.1. Introduction 4.2. The introduction of general exception to copyright in international copyright law 4.2. National limitations at the time of the Stockholm Conference. 4.3. The nature of the three-step test 4.3.1. The three-step test under the Berne Convention is limited to the reproduction right while TRIPS applies to all rights 4.3.2. TRIPS does not restrict the enjoyment of rights granted under the Berne Convention 4.3.4. The scope of limitations and exceptions under the Berne Convention are considerably narrow 4.3.5. Article 13 of TRIPS restricts the use of exceptions 4.3.6. Of authors and right holders: no place for social interests like education in TRIPS 4.3.7. Importance of differences between article 9(2) BC and article 13 TRIPS 4.4. The meaning of the three-step test and its implications for access to printed copyrighted material for educational purposes in developing countries 4.4.1. Certain special cases Exceptions must be narrow in quantitative and qualitative sense Exceptions are not justified by reasons of public policy Certain special cases and access to education in developing countries 4.4.2. “Does not conflict with a normal exploitation of the work” Conflict with normal exploitation and access to educational materials in developing countries 4.4.3. “And that do not unreasonably prejudice the legitimate interests of the author/right holder” Legitimate interests for patents are different than those for copyright 4.5. Exceptions to the right of translation 4.6. The usefulness of the three-step test for access to educational materials in developing countries CHAPTER 5: SPECIAL LEGAL REGIMES FOR ACCESS TO EDUCATION IN DEVELOPING COUNTRIES 5.1. Introduction 5.2. The Stockholm Protocol: a sign of lack of interest in access problems of developing countries 5.2.1. Background 5.2.2. History of the preparatory work and studies 5.2.3. Substantive and procedural provisions of the Protocol 5.2.4. Evaluation of the Protocol 5.3. A special legal regime for developing countries: The Berne Appendix 5.3.1. The link between the Stockholm Protocol and the Appendix to the Berne Convention 5.3.2. Substantive provisions of the Appendix 5.3.3. Procedural requirements of the Appendix. Waiting period for translation license Waiting period for reproduction license Requirements applying to both translation and reproduction licence 5.3.4. Assessment of the Berne Appendix 5.3.5. The practical consequences of the Appendix 5.4. Practice on compulsory licensing for translation and reproduction (Berne Appendix) 5.5. Conclusions on special legal regimes for access to protected works CHAPTER 6: MODELS OF PRACTICE RELATING TO LIMITATIONS AND EXCEPTIONS TO COPYRIGHT FOR EDUCATIONAL PURPOSES 6.1. Introduction 6.2. Factual Acceptance of fair use and fair dealing by developing countries 6.3. United States: Fair use under section 107 of the US Copyright Act of 1976 and before the U.S. Courts 165 6.3.1. The role of Industry in defining copying for classroom use: clarifying the purpose of the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to books and periodicals 167 6.3.2. Judicial practice on fair use and access to printed educational material Purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes Amount and substantiality of the portion used Effect of the use upon the potential market or value of the copyrighted work 6.3.3. Compatibility of Fair Use Doctrine with the three-step test: the market effect test 6.3.4. The relationship between Market effect, parody and the three-step test 6.3.5. Application of fair use to developing countries: the case of Africa A case for fair use in developing countries 6.4. Fair dealing for the purpose of research or private study: the case of Canada 6.4.1. The Court lists factors for determining fair dealing: towards international harmonization of the fairness principle 6.4.2. The Court restates the purpose of copyright: towards a balance between interests of copyright owners and users 6.4.3. CCH Canadian and the transformation of exceptions: Court defines exceptions in very broad terms 6.4.4. A rights approach to exceptions: exceptions and user rights 6.4.5. Broad definition of exceptions does not conflict with the three-step test 6.4.6. Lessons for access to education in developing countries 6.5. A “fairness” model for copyright and access to education in developing countries 6.5.1. Developing countries can devise educational exceptions through purposeful interpretation of legislation: the case of India 6.6. Compulsory licensing for copyright in printed works beyond the Berne Appendix 6.6.1. Compulsory licensing (CL) for reproduction of printed material: lessons from Australia A case for quasi compulsory licensing system for developing countries 6.6.2. Developing countries can issue compulsory licences for printed copyrighted material outside the system provided by the Berne Appendix 6.6.3. “Compulsory licences” in place of injunctions to avoid public injury: examples from the United States and India The case of Abend v. MCA, Inc The case of eBay v. MercExchange, L.L.C. India: Civic Chandran v. Ammini Amma Compulsory licensing instead of Injunctions under international copyright law 6.7. Conclusions on models of practice CHAPTER 7: INSTITUTIONAL AND NORMATIVE SOLUTIONS FOR ACCESS TO COPYRIGHTED MATERIAL FOR EDUCATIONAL PURPOSES 7.1. Introduction 7.2. Solutions in the World Trade Organization for access to health: Lessons for copyright and access to education 7.2.1. Doha Declaration on TRIPS and Public Health Challenges to the use of parallel imports and compulsory licensing in South Africa and Brazil Major provisions of the Declaration relevant to public health Legal status and effect of the Declaration 7.2.2. Legal recognition of the ineffectiveness of flexibilities in developing countries: The Decision on paragraph 6 Evaluation of the Decision 7.2.3. Amendment of the TRIPS Agreement 7.2.4. Extension of the Transition period for LDCs 7.2.5. Lessons from the WTO for copyright and education 7.3. The WIPO DA: Recent adoption by WIPO of development approaches to copyrighted works 7.3.2. Legal Basis of the Development Agenda: a constitutional reform of WIPO 7.3.3. A survey of some ‘Agenda’ items relevant to education Technical Assistance Norm setting, flexibilities, public policy and public domain 7.3.5. Establishment of the Committee on Development and Intellectual Property: A formal amendment of the WIPO Convention and modification of objectives of WIPO 7.3.7. Evaluation: the DA is a model for future development of access standards in international copyright law 7.4.7. Standing Committee on Copyright and Related Rights (SCCR): developing access principles and rules for copyright and education Proposals for work on limitations and exceptions for education, libraries and disabled persons: transforming flexibilities to user rights 7.4. Evaluation of recent developments in WIPO and some recommendations GENERAL CONCLUSIONS APPENDIX BIBLIOGRAPHY INDEX


All interested in access to education, intellectual property, trade and development, and those concerned access to educational material as a development tool and the impact of copyright on such access.